The Labor Prospect: How Garland Would (and Would Not) Be a Pro-Labor Justice

Judge Merrick Garland, President Barack Obama’s choice to replace the late Justice Antonin Scalia on the Supreme Court, sits during a meeting with Senator Patrick Leahy, the top Democrat on the Senate Judiciary Committee which considers judicial nominations, on Capitol Hill in Washington, Thursday, March 17, 2016.

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Garland: Promise and Uncertainty

Though Obama’s Supreme Court nomination of Merrick Garland last week is predictably facing head-in-the-sand obstructionism from the GOP, there is still a possibility that the Senate could approve him if a Democrat wins the presidency in November.

So it’s important to consider what kind of justice would Garland be on labor cases. His nearly 20 years of jurisprudence on the D.C. Circuit Court shows him to be a prudent and restrained jurist who in labor-related cases largely defers to the National Labor Relations Board, typically benefitting unions and workers. However, given his preference for restraint, it’s unlikely that Garland would significantly counter the Court’s pro-business tilt of the past four decades.

During his D.C circuit judgeship Garland wrote 22 majority opinions involving appeals of NLRB decisions. In all but four he fully upheld the agency’s finding of an employer’s unfair labor practices, an analysis by the On Labor blog found. Even when he didn’t defer entirely to the NLRB, his opinions were generally favorable to unions.

Garland’s deference to the NLRB, though, is more likely a signal of his “strong views favoring deference to agency decisionmakers,” as SCOTUSBlog’s Tom Goldstein puts it, than a strong pro-labor viewpoint.

Given that many legal experts peg him to the right of the current liberal justices, if Garland is appointed that would put him in the pivotal swing seat currently occupied by Anthony Kennedy.

As Catherine Fisk has noted, appointing a progressive—or at least someone sympathetic to labor—could have huge ramifications for workers, as it would open the door to challenges on a number of 5-4 decisions that undermined workers’ rights. Garland could be influential on cases that center on the National Labor Relations Act, arbitration agreements, and workers’ First Amendment rights.

So in that sense it’s safe to say that Garland would swing the court to the left on worker rights—but to what degree and with what type of breadth is still unclear. As Noam Scheiber recently wrote for The New York Times, the Supreme Court—including its liberal judges—has grown more supportive of big business’s interests even as public outrage at the corporate agenda has reached a boiling point. That gap, Scheiber writes, “is unlikely to be significantly narrowed by the kind of justice President Obama—or the next president, Democrat or Republican—is expected to nominate.”

Many are skeptical of Garland’s potential for high-altitude change. As In These Times’ David Moberg posits, “It’s hard to give him a clear political label, but Garland does not seem to be as progressive on workers’ rights issues as Scalia was reactionary.” The Washington Post’s Robert Barnes goes so far as to characterize Garland as “a left-leaning version of Chief Justice John G. Roberts Jr.”

Garland may not be the liberal firebrand or consistently formidable voice against corporations that progressives were hoping for. But his judicial record on labor cases led many labor leaders to quickly voice support for his nomination—AFL-CIO President Richard Trumka lauded his “impeccable credentials and deep experience.”

With that said, this could all become irrelevant, however, in the face of GOP intransigence in the Senate.

Trump, Unions, and the White Working Class

Over the past half-century, the white working class as a voting bloc has steadily drifted away from the Democratic Party, propelled by de-unionization, downward mobility and racial revanchism. This year, Donald Trump’s presidential candidacy has become a crude outlet for that disillusionment.

That poses a major problem for the labor movement, which in recent years has embarked on an ambitious attempt to reengage in politics with the white working class—including the growing majority that doesn’t belong to unions. Working America, the AFL-CIO’s canvassing arm, has largely been that engagement tool. And as The Huffington Post reports, the group has seen firsthand the scope of Trump’s support through its extensive door-knocking operations.

Labor leaders are becoming increasingly concerned about his potential to splinter the union vote and romp among working-class whites in a general election. In recent weeks, several union leaders have blasted Trump for his bigoted rhetoric and history of union busting and offshoring.

It’s unclear whether Trump will pivot his campaign in the general in a more pro-union direction or will latch on to the standard anti-union GOP agenda. As Huffington Post notes, Trump has played both sides so far—both voicing support for right-to-work laws and claiming to have solid relationships with unions.

The labor movement’s challenge in the general will be convincing the white working-class that voting for Trump is against its economic interests, much as unions did in 1968 when they persuaded workers not to vote for George Wallace’s independent candidacy for president. While labor has largely succeeded at this task among its own members since 1968, it hasn’t arrested the rightward drift of the steadily growing share of non-union white workers.

Uber Debate Advances

Larry Mishel and Ross Eisenbrey of the Economic Policy Institute released a new report last week pushing back on a provocative policy prescription that, in response to an ascendant “gig economy,” calls for a third category of worker that blends the employer flexibility of an independent contractor with the legal protections of a traditional employee.

The proposal they were commenting on came from economists Seth Harris and Alan Krueger, who argued that establishing a new class of “independent workers” is necessary to address the legal limbo into which such on-demand workers as Uber and Lyft drivers currently fall.

The new EPI report fills a big void in the conversation by refuting the claim that many app-workers’ labor is unmeasurable by conventional metrics. Mishel and Eisenbrey argue that this assertion rests on a “mistaken assessment of an Uber driver’s situation,” going on to say that this type of labor still falls within the confines of traditional employment regulations.

Tidbits

A new study shows that political coercion of workers by their employers at election time, which has become increasingly common since Citizens United opened the door for it, is quite effective at influencing how employees vote.

Missouri’s Democratic Governor Jay Nixon has yet again vetoed a GOP anti-union attack—this time a bill that requires public employees to reauthorize union dues on a yearly basis.

After completing an aggressively anti-worker legislative session, Wisconsin Republicans are working to craft that into a winning political narrative for 2016.

At the Prospect…

While the TPP trade deal faces increased political scrutiny, David Dayen explains how the Obama administration is currently negotiating a trade compact with China that could offshore more jobs and further erode worker rights. Read more…